PEOPLE v. CHIUAppellant’s Answer Brief on the MeritsCal.February 15, 2013 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CASE NO. 8202724| CALIFORNIA, ] ] DCA CASE NO. C063913 Plaintiff and Respondent, ] ] Sacramento County vs. ] Case No. 03F08566 | BOBBYCHIU, 1 ~ SUPREME COURT FILED Defendants and Appellants. ] ] FEB 15 2013 | Frank A. McGuire Clerk ANSWERBRIEFON THE MERITS APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT / COUNTYOF SACRAMENTO THE HONORABLE LLOYD G. CONNELLY, JUDGE AFTER DECISION BY THE COURT OF APPEAL THIRD APPELLATE DISTRICT SCOTT CONCKLIN [105090] Attorney at Law 2205 Hilltop Drive, No. PMB-116 Redding, California 96002 (530) 243-8510 Attorney for Appellant Bobby Chiu Appointed by the Supreme Court TABLE OF CONTENTS ISSUE PRESENTED STATEMENTOF CASE STATEMENT OF FACTS. 1. Sarn’s threat to Mackinson. (a) Testimony ofSarn Saeteurn. (b) Testimony ofMackinson Sihabouth. (c) Testimonyof Troang Tran. 2. The brawl. (a) Testimony ofSimon Nim. (b) Testimony of Teresa Nguyen. (c) Testimony ofAntonio Gonzales (d)- TestimonyofAngelina Hernandez. (e) Testimony ofJoshua Bartholomew. ( Testimony ofLareina Montes. (g) Testimony ofAnthonyMontes. (h) Testimony ofNhuc Chong. (i) Testimony ofMark Egeland. 3. Aftermath. 4. Gang Evidence. 5. Defense ARGUMENT IN ORDERFORAN AIDER AND ABETTORTO BE CONVICTED OF FIRST DEGREE PREMEDITATED MURDER BY APPLICATION OF THE NATURAL AND PROBABLE CONSEQUENCE DOCTRINE, THE TRIER OF FACT MUST FIND THAT PREMEDITATED MURDERWASA REASONABLY FORESEEABLE CONSEQUENCE OF THE TARGET OFFENSE. A. INTRODUCTION. B. TO ESTABLISH LIABILITY UNDER THE NATURAL AND PROBABLE CONSEQUENCE DOCTRINE, THE TRIEROF FACT MUST FIND THAT THE OFFENSE COMMITTED BY THE CONFEDERATE WAS A NATURAL ANDPROBABLE CONSEQUENCE OF THETARGET OFFENSE THAT THE DEFENDANT AIDED AND ABETTED. C. RESPONDENT’S ARGUMENT IS CONTRARY TO ESTABLISHED CASE LAW AND FAILS TO STATE A COMPELLING REASON TO DEPART FROM ESTABLISHED CASE LAW. O A I H D A N N W W Y W W e fo e e h r w h p A f e ee t e t m W h W W N N H © 18 18 19 23 D. BECAUSE RESPONDENTIS URGING A JUDICIAL CONSTRUCTION OF A CRIMINAL STATUTE THATIS UNEXPECTED AND INDEFENSIBLE BY REFERENCE TO THE LAW WHICH HAD BEEN EXPRESSED PRIOR TO THE CONDUCTIN ISSUE, IF THAT JUDICIAL CONSTRUCTIONIS. ADOPTED,IT MUST NOT BE GIVEN RETROACTIVE EFFECT. E. RESPONDENT’S CLAIM OF HARMLESS ERRORMUST BE REJECTED. 1. Not raised below. 2. Not fairlyincluded in the issue raisedin the Petition for Review. 3. The People have failed in the burden ofproving that the error was harmless beyond a reasonable doubt. CONCLUSION 34 36 36 37 37 43 TABLE OF AUTHORITIES UNITED STATES SUPREME COURT Bouie v. City ofColumbia(1964)378 U.S. 347 Chapman v. California (1968) 386 U.S. 18 Dennis v. United States (1951) 341 U.S. 494 Fahy v. Connecticut(1963) 375 U.S. 85 Fontaine v. California (1968) 390 U.S. 593 Graham v. Florida (2010) 560 U.S. __ Hedgpethv. Pulido (2008)555 U.S.__ Morissette v. United States (1952) 342 U.S. 246 Neder v. United States (1999) 527 U.S. 1 Rose v. Locke (1975) 423 U.S. 48 Stromberg v. California (1931) 283 U.S. 359 United States v. Lanier (1997) 520 U.S. 259 Yates v. Evatt (1991) 500 U.S. 391 Yates v. United States (1957) 354 U.S. 298 CALIFORNIA SUPREME COURT Grosset v. Wenaas (2008)42 Cal.4th 1100. In re Brown (1973) 9 Cal.3d 612 People v. Breverman (1998) 19 Cal.4th 142 People v. Cooper, supta, 53 Cal.3d at People v. Croy(1985) 41 Cal.3d 1 People v. Dail (1943) 22 Cal.2d 642 People v. Davis (1994) 7 Cal.4th 797 People v. Durham (1969) 70 Cal.2d 171 People v. Escobar (1992) 3 Cal.4th 740 People v. Favor (2012) 54 Cal.4th 868 People v. Gonzalez (2006) 38 Cal.4th 932 People v. Gordon (1990) 50 Cal.3d 1223 People v. Green, supra, 27 Cal.3d 1 People v. Harris (1994) 9 Cal.4th 407 People v. Heitzman (1994) 9 Cal.4th 189 People v. King(2006) 38 Cal.4th 617 People v. Lee, supra, 31 Cal.4th at People v. Lopez (2012) 55 Cal.4th 569 People v. Mayfield (1997) 14 Cat.4th 668 People v. Medina (2009) 46 Cal.4th 913 People v. Mendoza (1998) 18 Cal.4th 1114 People v. Morante (1999) 20 Cal.4th 403 People v. Mosher (1969) 1 Cal.3d 379 People v. Nakahara (2003) 30 Cal.4th 705 People v. Pearson (2012) 53 Cal.4th 306 People v. Perez (2005) 35 Cal.4th 1219 19, 35 38 33 39 38 33 38 32, 33 37 35 38 35 38 38 37 24, 31 32 25 20 39 35 20 35 21,29 39 38 39 39 26 21 29. 25 38 21, 24, 27 28 35 31 22 21 39 People v. Prettyman (1996) 14 Cal.4th 248 People v. Prince (2007) 40 Cal.4th 1179 People v. Rathert (2000) 24 Cal.4th 200 People v. Roberts (1992) 2 Cal.4th 271 People v. Ragers (2006) 39 CaL4th 826 People v. Simon (1995) 9 Cal.4th 493 People v. Thomas (1945) 25 Cal.2d 880 People v. Tufunga (1999) 21 Cal.4th 935 People v. Valentine (1946) 28 Cal.2d 121 People v. Wharton (1991) 53 Cal.3d 522 CALIFORNIA COURT OF APPEAL People v. Butts (1965) 236 Cai.App.2d 817 People v. Gonzales (2001) 87 Cal.App.4th 1 People v. Nguyen (1993)21 Cal.App.4th 518 People v. Superior Court (Persons) (1976) 56 Cal.App.3d 191 People v. Woods (1992) 8 Cal.App.4th 1570 CALIFORNIA STATUTES Penal Code, section 6 section 20 section 31, section 187 section 186.22 section 644 section 12022 section 12022.53 section 12022.7 CALIFORNIA PATTERNJURY INSTRUCTIONS CALCRIM No. 403 CALCRIM No. 521 CALCRIM No. 522 18, 20, 23, 28, 32, 36 22 35 33 22 32 40 31 21, 40 35 39 28 21 25 18, 22, 24, 31, 36, 46 24, 31 21, 29 24, 31, 35 1 2 29-30 2 2 2 19, 23 23 41 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA Defendants and Appellants. THE PEOPLE OF THE STATE OF | CASE NO. 8202724 CALIFORNIA, . I ] DCA CASE NO. C063913 Plaintiff and Respondent, ] ] Sacramento County VS. ] Case Ne. 03F08566 I BOBBY CHIU, ] | | ] i ISSUE PRESENTED “In order for an aider and abettor to be convicted of first degree premeditated murder by application of the natural and probable consequences doctrine, must a premeditated murder have been a reasonably foreseeable consequence ofthetarget offense, or is it sufficient that a murder would be reasonably foreseeable?” STATEMENT OF THE CASE On April 11, 2005, an amended information wasfiled in Sacramento Superior Court, charging appellant and a co-defendant (Tony Hoong) with the murder of Roberto Treadway, in violation ofPenal Code section 187,subdivision (a). It was further alleged that the crime was committed for the benefit of, at the direction of, and in association with a criminal street gang, to wit “HOP SING,” with the specific intent to promote, further and assist in criminal conduct by gang members, pursuant to Penal Code section 186.22, subdivisions (b)(1) and (b)(5). It was further alleged that a principal in the offense intentionally discharged and personallyused a firearm, and proximately caused great bodilyinjury as defined by Penal Codesection 12022.7, in violation of Penal Code section 12022.53, subdivisions (b)(c)(d) and (e)(1). (1Supp. CT 29-30.) On June 20, 2005, following trial byjury, appellant was convicted of first degree murder and the special allegations were sustained. On July 29, 2005, appellant was sentenced to a term of 25 years to life for first degree murder with a consecutive term of 25 yearsto life for the firearm enhancement. (1Supp. CT 31-32.) On November12, 2008, the judgment was reversed and remanded for newtrial, except for the firearm use enhancement, which was reversed for insufficient evidence with retrial barred. (ACT 10-53.) On August 26, 2009,the information was orally amended by striking the firearm use allegation and replacing it with an allegation alleging that in the commission and attempted commission of the offense, a principal in said offense was armed with a firearm, to wit, a handgun, said arming not being an element of the above offense, within the meaning ofPenal Code Section 12022, subdivision (a)(1). (LRT 17; 1OCT 2842.) On October 27, 2009, followingtrial byjury appellant was convicted offirst degree murder and the special allegations were sustained. On December 11, 2009, appellant was sentencedto a term of25 years to life for first degree murder with a consecutive term ofone year for the firearm enhancement. (LOCT 2957-2958.) STATEMENT OF FACTS 1. Sarn’s threat to Mackinson. (a) Testimony ofSarn Saeteurn. In 2003, Sarn Saeteurn, age 13 or 14, was a member ofMien youth gang called Outlaw Crips. (LRT 245-247, 266.) On September 29, 2003, Sarn learned about a fight between two girls named April and Phan. (1RT 242.) Sarn was friend ofApril and he knew that Phan was a friend ofMackinson Sihabouth. (ART 243.) Sarn was upset about the fight between the two girls and blamed Mackinson. He sent Mackinson a text message that night to call him outfor a fight after school the next day: “I am going to beat you up. I am calling you out. We’re going to havea fight. Meet me after school out in front ofFamous Pizza” (1RT 250-251.) Sarn also threatened to bring his “crew” (which was a reference to fellow gang members) and wrote, “ifyour dad comesout of that shopandtries to break up this fight, I’m going to cap him,” and “[i]fyou chicken out, partner, I may cap you too.” (IRT 252-254.) This was meant to scare Mackinson. (1RT 253.) The next day, April warned Sarn that the Hop Sing gang would be there. Sar heard that Hop Sing had a reputation for being a serious, violent gang. Because Sarn could not get enough of his own people to back him up and because he wasafraid that he would be outnumbered by Hop Sing, he did not go to the pizza parlor to fight Mackinson. (1RT 257-258.) As he told police, “I didn’t show up because Hop Sing are crazy and they kill people.” (1RT 259.) (b) TestimonyofMackinson Sihabouth. Mackinson Sihabouth was a high school student at McClatchyHigh School. His parents owned FamousPizza, located near the high school, at the corner of Freeport Boulevard and Fifth Avenue. (IRT 274.) Mackinson witnessed the fight between April and Phan that occurred near the pizza parlor. The two girls briefly exchanged blows before the fight was broken up. (IRT 277-278.) That evening, Mackinson discussed the fight with his friend, Sarn Saeteurn,usingAOL instant text messaging. (1RT 278-279.) Sarnwas angry with Mackinsonfor failing to take April’s side in the fight. (QRT 318-320.) Sarn. challenged Mackinson tofight atthe pizza parlor. (LRT 285.) He alsothreatened to shoot Mackinsonifhe did not show up and he threatened to shoot Mackinson’sfather. (IRT 286-288.) Mackinson knew that Sarn was in a gang called OLC. (IRT 286.) After Mackinson received the text challenging him to fight, he contacted twe friends, William and Simon. (1RT 290.) Mackinson told detectives that the reason he called Simon was to ask for back up. (IRT 295-298.) Mackinson knew Simon as someone who hung-out playing video gamesat the internet cafe called the E-Channel, which was the business next doorto his father’s pizzeria. Simonhangs out there with “heavyset Tony” (Tony Hoong) and appellant. (RT 292, 323, 383-384.) The next day, Mackinson waited at the pizza parlor for Sarn to show upfor the fight, but Sarn did not show. Instead, a crowd assembled outin front of the pizza parlor to watch the fight, which included about 20 Nortenos. (2RT 302-305, 312.) Mackinson thought it was unusual to see the Nortenos there. (2RT 326-327.) He decided to leave and got a ride from the pizza delivery person. (1RT 277, 300.) When they passed a number of emergency vehicles going in the opposite direction with lights and sirens, Mackinson became worried that maybe his father had been shot. He returned to the pizza parlor to find that the area had been taped off. (2RT 305-307, 326.) (c) Testimony ofTroang Tran. Troang Tran was a student at American Legion High School who knew both Simon and appellant. (2RT532-533, 543.) He spoke to appellant at school on September30, 2003. Appellant invited him to watch a fight after school where someone mightget shot. (2RT 537-538.) He said that two guys would befighting over a girl. (2RT 554.) As Troangtold the detective, appellant asked: “You wannago see a fight? ... You wanna come with meto seea fight?” Troang said no, and appellant added, “He might get shot.” When Troangsaid he did not believe it, appellant said that his friend might shoot, “ifhe ... gets pressured, he will.” (9CT 2661.) Troang suspected that Simon and appellant were Hop Sing because they hung out with Hop Sing boys. (2RT 544.) When he asked Simonifhe was Hop Sing, Simon said, “If I am, I am, if I’m not, I’m not.” (2RT 544; 9CT 2664.) When he asked appellant if he was Hop Sing, appellantfirst said no and later said yes. (2RT 548; 9CT 2665.) But the fight on September 30th was not supposed to be a Hop Singfight. It was just two guysfighting over a girl. (2RT 554.) 2. The brawl. (a) TestimonyofSimon Nim. Simon Nim was at the E-Channelto play video games and watchthe fight. Once McClatchy High Schoollet out, a large crowd began to gather in the area around Famous Pizza and the E-Channel. (2RT 424, 441.) Simon saw appellant outside the E-Channel. (2RT 397.) Simon recognized a girl he knew from middle school named Teresa andsaid hello. (QRT 442-443, 499.) Simon did not hear appellant say anything to her. (2RT 499.) A boy from the crowd named Antonio appeared to be angry at appellant. He walked up to appellant in an aggressive manner and assumed an aggressive stance infront of him. Antonio’s friends gathered around. (2RT 461, 500-501.) Antonio swungfirst and the two began to fight. 2RT 462.) Simontried to intercede and was struck in the face bytwo individuals from the crowd. (2RT 503.) Simon saw appellant fall to the ground. His shirt was pulled up over his face. Appellant was surrounded by a group of three or more who werehitting and kicking him. (2RT 503-504.) Simon also saw TonyHoong and Rickie Che fighting in the brawl. (2RT 504-505.) A gunshotrang out, and the crowd scattered. (2RT 505, 508.) Simon helped appellant to his feet and they followed Rickie to his car. Simon saw, for the first time, that Rickie had a handgun. (2RT 505- 506.) The prosecutor confronted Simon with prior statements wherehe claimed that Antonio and Teresa were together when appellant said something insulting to Teresa. (2RT 446, 451.) In Simaon’sprior statement, he said that Antonio confronted appellant aggressively, saying “quit treating her like a kid.” Appellant responded: “Like ifyou are going to do something, doit and let’s do it.” (ART 453.) Appellant swung first. (2RT 457, 462.) After the shooting, the four of them ran to Rickie’s car. Simon, who was trailing, had to yell for Rickie to wait up. (2RT 512.) (b) TestimonyofTeresa Nguyen. When Teresa Nguyen arrived at that location, her boyfriend (Antonio Gonzales) met up with her and gave her a hug and kiss. She then called out to a friend to ask if she knew the whereabouts ofher little sister. (@RT 645, 648.) Four Asian boys were sitting on the trunk ofa car, and Teresa got the impression that they were mocking her. She turned to them and said, ‘Are you mocking me?’ Theystarted laughing, and she told them to shut up. (3RT 649.) Oneofthe Asians (appellant) asked Antonio,“Is that your girl?” Antonio said, “Yeah, that’s my girl.” (RT 650, 678.) Appellant gotdown from the car. (RT 653.) Antonio took off his backpack. (3RT 689.) Antonio’s friend, Roberto Treadway, told Antonio, “I got your back, and Antonio and Roberto touched hands. (3RT 681, 689.) Antonio then met appellant in the street, where Antoniosaid, “What’s up?” Teresa understood this as a challenge to fight. (3RT 679.) The two stood facing each other in a stare-down contest. It did not looklike there would be a fight, but then Roberto suddenly lunged forward, as ifhe were hit by something, and fighting erupted everywhere. (3RT 656, 659, 692.) Everyonein the crowd ofabout 20 to 25 began fighting, with Mexicans on one side and Asians onthe other. (3RT 663-664.) Teresa focused her attention on Antonio’s fight. Appellant had Antonio down when Antonio’s cousin Angel (a large girl) hit appellant in the back ofthe head, causing him to go limp. Antonio was then able to gain the advantage over appellant. (3RT 660-662, 685-687, 690-691.) Afew minutes into the fight, someone yelled out “gun.” Everyone scattered and then there was the sound of a gunshot. (3RT 665, 668.) Teresa ran to thelightrail station where she later met up with Antonio. (3RT 668-670.) (c) Testimony ofAntonio Gonzales. Antonio Gonzales was a student at American Legion High School. Teresa Nguyen was his girlfriend and he was friends with Roberto Treadway. (3RT 694-696.) He claimed not to be Norteno, but he knew that Roberto was associated with Nortenos. (ART 969.) Antonio usually met Teresa after school around Famous Pizza. (3RT 695.) On September 30, when he metherthere, three Asians who were sitting atop a Honda said something to Teresa which caused her to say “shut up” in response. Antoniolater identified the three as Tony, Rickie, and appellant. (3RT 697-700.) Antonio made eye contact with appellant and the two of them exchanged “fighting words,” i.e., “[w]e pretty much werecalling each other out. What’s up. Hey, what do you want to do? He called me -- I believe he called me a bitch and then so it became a personal matter. It was no longer about mygirlfriend.” (3RT 701.) Antonio felt that he would look like a coward if backed down in front of his girl. (3RT 701-702.) Teresa, however, was telling him to just walk away. (3RT 729.) Appellant and Antonio walked towards each other. Tony and Rickie got off the car and stood with appellant. (@RT 703.) Antonio said to appellant, ““What’s up?” He meant this as a challenge to fight. (3RT 726.) Roberto walked up alongside Antonio and said, “Comeon, I got your back.” (3RT 703-705, 728.) Rickie Che punched Roberto, and the fight was on. (3RT 708.) Antonio’s friends joined the fight because “they had my back.” (3RT 728.) Ten to fifteen people were fighting. (3RT 710.) Antonio was focused on his own fight with appellant. It began when appellant swung at Antonio and missed, and Antonio swung back and missed, and then punches started to connect.RT 708.) Appellant grabbed Antonio and threw him to the ground, and was punching him from above. (3RT 709.) A big girl smashed appellant in the head, and Antonio then bloodied appellant’s nose bykneeing him in the face. (3RT 710-711, 728.) They both got to their feet and then wrestled each other to the ground again. (3RT 711-712.) Antonio was yelling “fighting words” while wrestling with appellant. “I was just talking a whole lot of smack just you ‘Get offme. Ill kick your ass,” (RT 713.) Hedid not hear appellant say anything during the fight. (RT 714.) Someone yelled “gun,” and they both pushed each other away. Antonio stood up and saw Rickie Che pointing a gun at him. (3RT 713-715.) Rickie said, “Run now, bitch, run,” and Antonio took off running. Three to four seconds later, he heard a gunshot. (3RT 716, 730.) He turned and saw the three Asians run to the car and drive off. (3RF 718.) Although he could no longerrecall, Antonio stated in prior testimony that appellant was driving. (3RT 718-719.) Antonio saw Roberto on the ground with a gunshot woundto his head. (3RT 717.) Hedid not stay with his woundedfriend because he figured he was dead. (3RT 720.) Antonio wentto thelight rail station where he met up with Teresa, and he took the light rait home. (3RT 721.) (d) Testimony ofAngelina Hernandez. Angelina Hernandez was a McClatchy High School senior, a cousin to Antonio Gonzales, and best friends with Roberto Treadway. (3RT 772-773.) She insisted that neither of them were Norteno. (3RT 805.) On September 30, Angelina was chit-chatting with friends outside the E-channel when she noticed an incident involving Teresa and Antonio. 3RT 776.) Teresa, who is Asian herself, was being bothered by a group of “preppy” Asians who werehitting on her and asking her to hang out with them. She told them no and usedthe f-word, and urged Antonio to fight to defend her honor. (3RT 776-777; 803, 807-809.) Antonio walked up to appellant and the two exchanged words. Appellant had a friend standing nextto him. Roberto stood next to Antonio. (3RT 779-780.) Appellant’s friend (Rickie Che) “sucker punched” Roberto in the jaw andhefell to the ground, and then everyonestarted fighting. (3RT 784.) It did not appear to be a gang fight. (3RT 802-804, 806-807.) When appellant threw Antonio to the ground and was punching him from above, Angelina (who describedherselfas “pretty good size”) jumpedinand hit appellant in the back ofthe head “‘a good eight or nine times,” while yelling and swearing, “get off my cousin.” (3RT 785-786, 812.) She backed off when Antonio was able to get up. A friend named Reyes then movedin to help Antonio fight appellant, and Reyes got in one solid punch. (RT 791.) Angelina looked around and saw a riot going on between Hispanics and Asians. (3RT 787, 792.) She ran over and hit an Asian whowas fighting with Roberto, and then “T basicallyjust ran around the fight hitting random people that were fighting my friends.” (3RT 793.) She sawa fat Asian (Tony) swinging a knife around, while another Asian (Rickie) ran toward a Honda car. (3RT 794-793.) When Antonio yelled, “gun,” she looked back and saw Rickie waving a gun around. A voice in the crowd, coming from the direction of the Pizza parlor, yelled “shoot, shoot, shoot,” and the gun went off. Roberto was hit. Everyone ran off. Angelina saw the Asians who were fighting run toward the Honda car. (3RT 799-801.) (e) TestimonyofJoshua Bartholomew. Joshua Bartholomew wasa student at McClatchyHigh School and wasa cousin to Roberto Treadway by marriage and was a good friend of Antonio Gonzales.RT 734, 738.) He acknowledged that Roberto was Norteno, butwas not sure about Antonio. He denied gang involvement himself. (3RT 757-758.) After school on September 30, he walked to the corner of Bidwell and Freeport where he saw a crowd gathering up the street. He walked over and made his way through the crowd where he saw Antonio and appellant engaged in an argument. (3RT 737.) Roberto was standing to the right ofAntonio. (3RT 741.) Joshua saw Rickie Che “mean mugging” Roberto. (3RT 740.) Roberto said to Rickie, “Don’t be looking at melike that.” Rickie then punched Roberto, and appellant and Antonio started fighting. (3RT 743.) The fight between appellant and Antonio spun into the street. (3RT 743.) A riot broke out and the fight was “them versus us.” (3RT 744.) -10- Nortenos usually help eachother in a fight rather than fight one-on-one. (3RT 761.) Appellant was on top of Antonio, so Joshua hit appellant “pretty hard”in the head. Appellant cried out for help: “Grab the gun.” (3RT 743, 746, 761-762.) Joshua then looked back and saw Tony and Roberto fighting 30 to 40 feet away. (3RT 743.) Tony was on top of Roberto and looked to be hurting him. GRT 746, 748.) Joshua ran to help Roberto. Tonyleft Roberto and went to where appellant and Antonio werefighting. (3RT 748.) Joshua and Roberto ran back to where Antonio wasfighting to urge his friends to get outof there. (3RT 738.) Tony intercepted them, pulled out a three-inch pocket knife and stabbed Roberto in the arm. (3RT 749-750.) Someone shouted out, “He’s got a gun.” (3RT 749.) Joshua looked back and saw Rickie aiming the gun at them. (3RT 752.) Joshua heard someonesay,“you better run, bitch.” (3RT 765.) He and Roberto turned to nan. He heard the sound of a gunshot and Roberto fell. (3RT 763.) (f) Testimony ofLareina Montes. Lareina Montes was a McClatchy High School student who normally walks by FamousPizza on her wayhome from school. (3RT 819.) On September 30, she saw a crowd gathered out in front of Famous Pizza. It looked like a group ofher friends from high school were arguing with a group of “preppy” Asians. By “preppy,” she meantthat they did notlooklike street fighters. (3RT 819-823.) A fight broke out just as she arrived. She tried to restrain Antonio by pulling him back, but he broke free and went backto fighting. (3RT 825.) Overa dozen were fighting, and the fight appeared to be evenly matched on both sides. (3RT 826.) It locked to be 10 to 15 Asians against 10 on her side. (3RT 847.) At one point, she saw Roberto beating up Rickie. (3RT 839.) At another point in time, Roberto yelled out that he had been stabbed. (3RT 848.) -ll- Asthe fighting began to die down, she saw Rickie run toward a car and comeback with a gun. (3RT 826-828.) He was holding it sideways and was waving it back and forth, kind ofaiming it everywhere. (3RT 833.) Roberto stopped fighting and walked away. (3RT 836.) An unknown voice in the crowd yelled, “Shoot him, shoot him, shoot him,” and Roberto was shot. (3RT 827.) (g) Testimony ofAnthonyMontes. Anthony Montes was a freshman at McClatchy High School. (3RT 852.) On the morning of September 30, while in PE class, Mackinson told him that he would be in a fight after school with a groupthat had a gun, andthat he had his own friends with a gun. (3RT 856, 867.) Anthony went to watch the fight after school. (3RT 856.) Instead of seeing a fight involving Mackinson, Anthony saw a fight break out between his own friends and a group of Asians. The fight started when Antonio’sgirlfriend started yelling at the Asians. A large group ofAsians jumped Antonio, and Anthony’s friends jumpedin to help Antonio, and then everybody was fighting. (3RT 857-860.) Anthony sawone Asian (Rickie) go to a green car and retrieve a gun from the trank. Rickie then went tothe middle of Sth Street and pointed the gun at Roberto. He hesitated. Two voices yelled, “shoot him, shoot him,” and the gunman fired. Then Rickie and the two who had yelled for him to shoot ran to the green car and droveoff, with Rickie in a rear passenger seat. (3RT 859-863, 867.) (h) Testimony ofNhue Chong. Nhuc Chong (formerlyknown as Hua Zhong)testified that he was playing video gamesat E-Channet before the shooting occurred. He did not know there wasgoing to bea fight that day. When his gameended, he went outside and saw appellant on the ground, being beaten badly by a group of six or seven Mexicans. (2RT 586, -12- 591-593, 602-603.) He did not see appellant hitting back, except for trying to block punches andstrike back defensively. (2RT 597-599, 606, 608.) Nhuc was standing near Tony, who was also fighting. He did not see what Simon and Rickie were doing. (3RT 609-610.) When a gunshot went off, Nhuc fell to the ground and was accidentally stabbed by Tony’s knife. (2RT 593, 604, 606.) Afterwards, he went inside, cleaned his wound, andleft before police arrived. (3RT 608.) (i) TestimonyofMarkEgeland. Mark Egeland, a uniformed resource officer at McClatchy High School, was alerted that there had been a shooting north of the school, at the intersection of Freeport and 5th Avenue. Egeland made his way through heavy vehicle traffic and a crowdofstudents to find Treadwaylying on the sidewalk with a single bullet wound to his head. (iRT 184-191 .) Efforts to administer CPR were not successful. (RT 195-197.) Egeland was advised by a campus monitor that a vehicle with a license plate of 3ES783 may have been involvedin the shooting. (IRT 197-198.) 3. Aftermath. Atthe scene, police found a man’s wallet with a high schoolidentification card issued to Roberto Treadway. (IRT 218-219.) An ejected AO caliber shell casing was found in the street along the curb line. (1RT 219-220.) The pathologist who conducted the autopsy of Roberto Treadway determined the cause of death to be a gunshot woundto the head. (3RT 614.) He had bruises and abrasions consistent with a fall to the ground. (3RT 624-625.) Treadway also had a non-fatal stab wound, three inches deep,to his left bicep. (@RT 622.) Bruises and contusions were found on his knuckles and on his face, consistent with fist fighting. -13- ‘G3RT 623, 625-626.) It looked like he was in a “rather serious brawl before the fatal wound was inflicted.” (3RT 629.) The prosecution introduced appellant’s prior testimony, where he described how after the shooting, two friends ofRickie came to his home and took him to a house somewhere out of town. Appellant later learned that the two men were HopSing. Tonyarrived atthe house as well. After several days, appellant contacted his family and an attorney and made arrangements to return to Sacramento to turn himself in. (SRT 1272-1278.) 4. GangEvidence. In September 2003, Officer Egeland investigated a report that a car with three students associated with a Norteno gang assaulted a Sureno studentin front of the campus. The occupants of the Norteno car shouted Norteno gang taunts at the other student, flashed gang signs, and threw things at him. One of students in the Nerteno car was identified as Roberto Treadway. Officer Egeland interviewed Treadway and observed that he had Norteno graffiti written on his text book. He wrote a report documenting Treadway as a gang member. (IRT 193-195.) Prosecution gang experts testified that Chinese and Vietnamese gangs are criminally sophisticated, unlike Hmong, Mien, African-American and Hispanic gangs, whooperate on stupid machismo. (4RT 954-955; 979.) The Hop Sing gangis especially sophisticated. (4RT 1019.) In 2004, there were 40 members. (4RT 1008.) Their primary activities are crimes of financial gain, such as extortion, illegal gambling, and commercial burglary, although they also engage in assaultive conduct. (4RT 921-923, 935, 1014-1015.) Among other Astan gangs, the Hop Sing are known as “feared killers.” (4RT 1060.) -14- Hop Sing members are muchless likely to engage in pointless violence than Nortenos and Surenos. Hop Sing members “usually don’t engagein conflicts out in the open where there is a lot of witnesses usually. And theytry to keep their criminal activity within their own set, and they don’t try to display it out in the open.” (4RT 1072.) Hop Sing’s enemy is Kong Zong Tong (KZT), and Hop Sing and KZT were at war between 1997 and 1999. (4RT 956.) There was no known gangrivalry between Hop Sing and Hispanic gangs. (4RT 987.) Hop Sing members do not “flaunt their gang.” (4RT 1072.) They dress “preppy,” have nocolors or gang signals, and avoid tattoos. (ART 961, 1007, 1018.) Prosecution experts opined that Rickie Che, Tony Hoong, and appellant were Hop Sing gang members. (4RT 1042, 1047, 1056.) 5. Defense. Appellanttestified in his own defense. He claimed thatthe fight between Mackinson and Sarn was only supposedto bea fist fight over a girl between thelittle brothers oftwo of his friends. (SRT 1414-1417, 1474.) Appellant deniedthat Mackinson asked him to be there for back up. (SRT 1476.) Appellantdid not believe rumors that Sarn might bring a weapon, and was unaware that Rickie Che had a gun in his car. (SRT 1418.) Appellant did not know Rickie well, and did not know him as someone whousually carries a gun. (SRT 1419.) Appellant deniedtelling Toang Trangthat his friend had a gun and that he may useit ifpressured. (SRT 1475-1476.) Appellant was smoking with friends on the trunk ofthe car. Sarn did not show up for the fight. (SRT 1421, 1481-1482.) When appellant saw Teresa, he tried to flirt with her by mockingher in a “girlie kind of voice.” Teresa respondedbytelling him -15- to “Shut the F up.” He then noticed Antonio Gonzales coming at him in an aggressive manner, saying “are you talking to my girl?” (SRT 1422.) Appellant tried to ignore him, but Antonio persisted. Appellantjumped down from the carto confront him. (SRT 1423-1424.) Appellant deniedthat he mocked Teresa with the intent to start a fight. (SRT 1484-1485.) He did notthink thathis remarks would lead to fighting. (SRT 1492.) Appellant and Antonio squared off against each other, and a crowd formed around them. Appellant’s attention wasso focused on Antonio that he was unaware ofwhat others were doing around him. (SRT 1425.) Antonio seemedto get less hostile as they talked, and appellant thoughtthatthe confrontation would die down. (SRT 1425, 1429.) Appellant was not aware thathis friends were standing beside him. (SRT 1485.) When appellant saw someone throw a punch out of the corner of his eye, he and Antonioinstinctivelystarted swinging at one another. (SRT 1427-1429.) Appellant took Antonio to the ground and had the superiorposition atfirst, but he then began receiving continuouspunchesto the back andside ofhis head. (SRT 1429- 1430.) He was not aware ofwhat was going on around him “because allI felt like the blows never stop.” (SRT 1431.) A blow to the face made him go weak, and he started bleeding from the nose. (SRT 1431.) He was in physical pain (SRT 1455), and feared that he might pass out. (SRT 1433.) He grabbed a hold of Antonio’s collar andtried to pull himselfup, while trying to regain consciousness. He and Antonio spun in circles, and they ended up in the middleofthe street. (SRT 1432.) Antonio suddenly broke free and tried to get away. (SRT 1433.) Appellant realized that Antonio was trying to get away because Rickie had pulled a gun. (SRT 1435.) -16- Appellant did not expect Rickie to pull a gun and did want him to do that. He denied calling for anyone to get a gun while fighting. (SRT 1434-1435, 1486, 1493.) Rickie fired and a shot Roberto, which was something that appellant did not intend. (SRT 1435-1436.) Appellant did not yell out for Rickie to shoot. (SRT 1487.) After the shooting, Rickie took off running. Appellant was afraid that the victim’s friends would getrevenge againsthim if he was left behind, so he ranto the car. Appellant, Rickie, Tony, and Simonleft in the car. (SRT 1437-1438.) Appellant testified that he did not consider Hop Sing to be a gang, and he was not a member ofHop Sing. (SRT 1420-1421.) -17- ARGUMENT IN ORDER FOR AN AIDER AND ABETTOR TO BE CONVICTED OF FIRST DEGREE PREMEDITATEDMURDER BY APPLICATION OF THE NATURAL AND PROBABLE CONSEQUENCE DOCTRINE, THE TRIER OF FACT MUST FIND THAT PREMEDITATED MURDER WAS A REASONABLY FORESEEABLE CONSEQUENCEOFTHE TARGET OFFENSE. A. INTRODUCTION. Review was granted on the People’s petition to address the following issue: “In order for an aider and abettor to be convictedoffirst degree premeditated murder by application ofthe natural and probable consequences doctrine, must a premeditated murder have been a reasonably foreseeable consequence of the target offense,oris it sufficient that a murder would be reasonably foreseeable?” The answeris well settled. “{T]o imposeliabilityunder the natural and probable consequence theory, the trier of fact must find ... the offense committed by the confederate was a natural and probable consequenceofthe target crime that the defendant aided and abetted.” (Peoplev. Prettyman (1996) 14 Cal.4th 248, 262, emphasis added.) Under that formula, when the offense committed by the perpetratoris first degree deliberate and premeditated murder, to convict an aider and abettor, the jury must find that the offense of first degree premeditated murder was a reasonably foreseeable consequence. (People v. Waods (1992) 8 Cal.App.4th 1570, 1589 ( Woods).} Respondent argues for the adoption of a new anddifferent test. Rather than have the jury determine whether the commission of the charged offense was reasonably foreseeable, respondent would have the jurysimply determine whether the “harm”or “actus reus” ofthe charged offense was reasonably foreseeable, leaving mens rea out ofthe equation. The only support in the case law for this position comes from the dissenting opinion in Woods. Despite lack of support in the case law, respondent -18- argues that considerations ofpolicy and equity compel that approach. Asshall be demonstrated below, respondent’s argument is unsound and shouldbe rejected. Given that respondent is suggesting a departure from existing law, and is proposing a newtest for determiningliability under the natural and probable consequence doctrine, should that new test be adopted, it should only be given prospective effect. “If a judicial construction of a criminal statute is ‘unexpected and indefensible by reference to the law which had been expressedprior to the conductin issue,’ it must not be given retroactive effect.” (Bouie v. CityofColumbia (1964) 378 U.S. 347, 354.) Finally, as a fall back position, respondent argues that the Court of Appeal erred in its harmless error analysis by failing to find instructional error harmless beyond a reasonable doubt. This argument should be rejected becausethe issue ofharmless error was not raised by the People im the Court of Appeal andis not “fairly included” in the issue upon which the People’s petition for review was granted. (Cal. Rules of Court, rule 8.516(b)(1).) And in any event, as is demonstrated below, the People have failed to sustain their burden ofproving the error harmless beyond a reasonable doubt. B. TO ESTABLISH LIABILITY UNDER THE NATURAL AND PROBABLE CONSEQUENCE DOCTRINE, THE TRIER OF FACT MUST FIND THAT THE OFFENSE COMMITTED BY THE CONFEDERATE WAS A NATURAL ANDPROBABLE CONSEQUENCE OF THE TARGET OFFENSE THAT THE DEFENDANTAIDEDAND ABETTED. The natural and probable consequenceinstruction given in this case allowed the jury to convict appellant of murderbased on his guilt of simple assault or breach of peace. The instructions, however, did not require thejuryto find that first degree murderwas a natural and probable consequence ofeither of those target offenses. Instead, CALCRIM No. 403 required the jury to simply find that murderwas the -19- natural and probable consequence ofa target offense, without specifying the degree. Once the jury made that finding, CALCRIM No. 521 directed jurors to determine the degree ofthe murder, not byasking whetherfirst degree murder was a natural and probable consequence of aiding and abetting target offenses, but by asking whether the perpetratorwas guilty of first degree murder, by acting willfully, deliberately, and with premeditation. A non-killer cannot be convicted of first degree murder based on a natural and probable consequence theory unless thejury finds, as a matter of fact, that first degree murderis the natural and probable consequence ofthe target offense. Because these instructions gave the jury a route to convict appellant of first degree murder without finding that first degree murderis the natural and probable consequenceofa target offense, the instructions were in error. Whether the charged crime was a “natural and probable consequence”ofa target offense, and the “extent of defendant’s knowledge”in that regard, are questions of fact for the juryto decide. (People v. Durham (1969) 70 Cal.2d 171, 181; People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5.) “{Tjhe trier offact mustfind that the defendant, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) by act or advice aided, promoted, encouraged or instigated the commission ofthe target crime. But the trier of fact must also find that (4) the defendant’s confederate committed an offense other than the target crime; and (5) the offense committed by the confederate was a natural andprobable consequenceofthe target crime that the defendant aided and abetted.” (People v. Prettyman, supra, 14 Cal.4th 248, 262, emphasis added.) In short, “[t]he_jurymust decidewhether ... the offensecommitted -20- by the confederate was a natural and probable consequence ofthe target crime(s) that the defendant encouragedor facilitated.” (Jd. at p. 267, emphasis added.) According to this test, the surymust find that the charged crime (not “harm” or “actus reus”) was reasonably foreseeable. Subsequent cases haverepeated thistest: “{T}he natural and probable consequences rule ... extends accompliceliability to the perpetrator’s reasonably foreseeable crimes regardless ofwhether the defendant personally harbored the specific intent required for commission of the charged, nontarget offense.” (People v. Pearson (2012) 53 Cal.4th 306, 321, emphasis added.) “Liability under the natural and probable consequences doctrine “is measured by whether a reasonable person in the defendant’s position would have or should have known that the charged offense was a reasonably foreseeable consequenceofthe act aided and abetted.””” (People v. Favor (2012) 54 Cal.4th 868, 874, emphasis added, citing People v. Medina (2009) 46 Cal.4th 913, 920, citing People v. Nguyen (1993) 21 Cal.App.4th 518, 535.) A “crime”or “offense” includes both a criminal act and a culpable mental state. “In every crime or public offense there must exist a union, or joint operation ofact and intent, or criminal negligence.” (Pen. Code, § 20.) “As a generalrule, no crimeis committed unless there is a union of act and either wrongfulintent or criminal negligence.” (People v. King(2006) 38 Cal.4th 617, 622.) Thus, whenthetest governing the natural and probable consequence doctrine requires that the“crime”or “offense “ committed by the confederate must be a natural and probable consequence of the target crime, it means that both the criminal act and the requisite mental state must be reasonably foreseeable. In this case, first degree murder was the charged offense,in that the People were seeking a conviction for that specific offense. (People v. Valentine (1946) 28 Cal.2d -21- 121, 134 [first degree murderis the “offense charged” when the charge is murder and it is “claimed by the prosecution to be murderofthe first degree”].) First and second degree murder are considered different offenses, in that first degree murder is considered a greater offense and second degree murdera lesser included offense. (People v. Prince (2007) 40 Cal.4th 1179, 1270.) Whenfirst degree murder is charged,the court cannot accept a guilty verdict on second degree murder unless the jury first unanimously finds the defendant not guilty of first degree murder. (Peoplev. Nakahara (2003) 30 Cal.4th 705, 715.) The two offenses are distinguished by differing mental states, with first degree murder requiring a “heightened mental state.” (People v. Rogers (2006) 39 Cal.4th 826, 874.) Whenthe defendant is charged with first degree murder on a natural and probable consequence theory, it is for the jury to decide whether first degree murder is the natural an probable consequenceofa target offense. (People v. Woods, supra, 8 Cal.App.4th 1570.) As the Woods majority explained, “the jury must determine whether other crimes and degrees ofcrimes charged against the aider and abettor were committed by the perpetrator. If so, the jury must determine whether those crimes, although not necessarily contemplated at the outset, were reasonably foreseeable consequencesofthe original criminal acts encouragedor facilitated by theaider and abettor.” (Jd. at p. 1586, emphasis added.) “Windham properly recognizes that his liabilityas an aider and abettorfor the killing of Chmelik dependedon a factual determination that, not only was the killing a reasonably foreseeable consequence of the offense originally contemplated, but that the gravity of the killing, i.e., the degree ofthe murder, wassuch a consequence.” (Jd. at p. 1589, original emphasis.) Here, the Court ofAppeal was correct in finding instructional error. The natural and probable consequenceinstruction allowed the jury to convict appellantof first -22- degree murderbased on his guilt of target offenses (simple assault or breach ofpeace) without requiring the jury to find that the charged crime of first degree murderwas a natural and probable consequenceofeither ofthose target offenses. The jury could rely on CALCRIM No.403to find that simple “murder” was the natural and probable consequenceofa target offense, and then apply CALCRIM No.521 to determine the degree ofthe murder by asking whether the perpetrator was guilty offirst degree murder. This enabled the jury to convict appellant of first degree murder on a natural and probable consequencetheory, based only on the view that murder was foreseeable, without finding that first degree murder was foreseeable as a natural and probable consequenceofaiding and abetting target offenses. C. RESPONDENT’S ARGUMENTIS CONTRARY TO ESTABLISHED CASE LAW AND FAILS TO STATE A COMPELLING REASON TO DEPART FROM ESTABLISHED CASE LAW. Respondent proposes a fundamental rewrite of the natural and probable consequencetest. Rather than have the jury determine the foreseeability ofthe crime that is charged, which is what existing case law requires, respondent would have the jury determine the foreseeability of the “harm.” In a murder case, “death” is said to be the harm. Thus, as respondentseesit, “[i]f a jury finds that the resulting death was a natural and probable consequenceofthe intended offense, then the aider’s liability under the doctrine isstrictly vicarious and is therefore guilty of the same degree of murderas the perpetrator.” (Respondent’s Brief on the Merits (RBoM),at p. 11, emphasis added.) This approach finds no support in the case law. It is said that the natural and probable consequencedoctrine derives from common law. (People v. Prettyman, supra, 14 Cal.4th 248, 260.) But because “[i]n California all crimes are statutory and there are no common law crimes”and “[o|nly the -23- Legislature and not the courts may make conduct criminal” (Jn re Brown (1973) 9 Cal.3d 612, 623; Pen. Code, § 6), the authority to impose vicarious liability on a natural andprobable consequence theory mustultimately derive from statute. Penal Code 31 is said to provide the statutory basis for the doctrine. (People v. Woods, supra, 8 Cal.App.4th 1570, 1598.) That code section provides: “All persons concermed in the commission ofa crime.... ate principals in any crime so committed, (Pen. Code, § 31, emphasis added.) If an unintended crime is a natural and foreseeable consequence of an intended crimethat a person aids and abets, then the aider and abettor is “concerned”in the commission ofthat unintended crime, and is thus liable as a principal. (People v. Woods, supra, 8 Cal-App.4th 1570, 529-530.) It is significant that Penal Code section 31 imposes vicarious liability based on a defendant being “concerned in the commission ofa crime,” rather than (as respondent posits) being concernedin the infliction of “harm.” To be concerned in the commission of a crime,it is not enough to say that some form of “harm” was reasonably foreseeable. Instead, to be concerned in the commission ofa certain “crime,” the commission ofthat particular “crime” must reasonably foreseeable. Respondent acknowledges that case law supports that test: “Liability under the natural and probable consequences doctrine ‘is measured by whether a reasonable person in the defendant’s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted,” (RBoM,at p. 13, emphasis added, citing People v. Medina, supra, 46 Cal.4th 913, 920.) Underthat test, liability is determined by the forseeablility of the “charged offense,” not the formability of “harm”or “death.” For a different result, respondent relies on the dissenting opinion of Justice Sparks in People v. Woods, supra, 8 Cal_App.4th 1570, 1596-1604, specifically: - 24. “What is crucial is that the aider and abettor either knew or should have known that a killing wasa likely result of this abetted criminal rampage, not whether this foreseeable killing might constitute first degree murder as opposed to second degree murder or some variety of manslaughter. Aiders and abettors are not lawyers and their liability should not turn on the abstruse distinctions between the various types of criminal homicide. ‘A primary rationale for punishing aiders and abettors as principals—to deter them from aiding or encouraging the commission of offenses’ (People v. Cooper {1991} 53 Cal3d [1158] 1168), would not be advanced by engrafting such rarefied distinctions on the derivative liability of accomplices.” (RBoM, at pp. 15-16, citing Woods, at p. 1602, dissenting opinion.) Needless tosay, “dissenting opinions are not binding precedent.” (People v. Lopez (2012) 55 Cal.4th 569, 585.) “The statements in the dissenting or concurring opinions of individual justiceswhich do not have the concurrence ofa majority ofthe justices are not precedent, and constitute only the personal views of the writer.” (People v. Superior Court (Persons) (1976)56 Cal.App.3d 191, 194.) Nor isthe Woodsdissent persuasive. Justice Sparks acknowledged that under the applicable test, “if the ultimate, charged crime is not a natural, probable, reasonable and foreseeable consequenceofthe abetted, target crime, then the aider is simply not guilty of the charged crime.” (Woods,at p. 1601, [dissent], emphasis added.) That statement acknowledgesthat it is the “charged crime” that must be reasonably foreseeable, andif it is not, the aider is not guilty ofthe “charged crime” on a natural and probable consequence theory. According to that formula, if first degree murderis the “charged crime,”and the juryfinds that first degree murderis not a natural, probable, reasonable and foreseeable consequenceofthe abetted, target crime, then the aider is simply not guilty of first degree murder. Justice Sparks goes onto say, however, that “it is not necessary that [the aider and abettor] foresee the precise manner or method ofthe execution ofthe charged crime.” ~25- ‘(d. at p. 1602.) He explained: “As appliedto homicide,it is enough that an unlawful killingwas a likely consequence of the target crime. Stated another way,itis not necessary that the aider and abettor precisely foresee that the killing might be a premeditated one to prevent detection rather than an unpremeditated, panicked reaction to witnesses appearing on the scene.” (d. at p. 1603, emphasis added.) If “homicide wasa foreseeable consequence... that ought to end the matter.” (ld. at. p. 1604.) The flaw in this analysis is that neither “unlawful killing” nor “homicide”is a specific “crime.” Those terms referto a family of differing crimes that are specifically defined by statute, with gradations in liability depending upon the gravity ofthe unlawful killing. It may be true that the aider and abettor need not foresee “the precise manner or method ofthe execution of the charged crime,” in the sense that manner or method in which the perpetrator commits first degree murder need notbe foreseeable. Butif the “charged crime”is first degree murder, then some form offirst degree murder must be foreseeable. As for the observation that “[a]iders and abettors are not lawyers,” whether they are lawyers or not is ofno moment, because we “‘require citizens to apprise themselves not only of statutory tanguage, but also of legislative history, subsequent judicial construction, and underlying legislative purposes.”” (People v. Heitzman (1994)9 Cal.4th 189, 200.) The observation that “[aJiders and abettors are not lawyers” also overlooks the fact that the foreseeability ofthe charged offense is determined objectively. The fact that aiders and abettors may not be schooled in the law, and might nat subjectivety appreciate “abstruse distinctions between. the various types of criminal homicide” does not mean that the reasonable foreseeability of first degree murder cannot be determined objectively. -26 - Respondentlooks next t o language in Peoplev. Medina, supra, 46 Cal.4 th 913. Respondent notes that “when analyzing the s ufficiency of the evide nce, this Court did not evaluate whether t he evidence was suffic ient to support a findi ng that a first-degree murder wa s foreseeable. Rather, this Court focused on the extent that a ‘shooting of the victim ’ was foreseeable. Thi s Court therefore demo nstrated that, at least in the context of an assault that leads to a first-degree murder, the appropriate inquiry is whethera ‘ shooting’ or ‘escalatio n of the confrontation to a deadly level’ was foreseeable.” (R BoM,at p. 18.) Respondent’s reliance on Medina is misplace d. Before reviewing t he sufficiency of the evidence to mee t the applicabletest, t he Medina court identi fied that test: “Ljability under the na tural and probable con sequences doctrine ‘is measured by whether a reasonable pe rson in the defendant’s p osition would have or s hould have knownthat the charg ed offense was 4 reaso nably foreseeable cons equence of the act aided and abetted.” (Pe ople v. Medina, supra, 4 6 Cal.4th 913, 929, emph asis added.) Thefact that the court went on to explain ho w the evidence was suf ficient for the jury to find that the “shoot ing of the victim” was foreseeable was not me antto alter the applicable test. The c ourt focused on the fo reseeability of the sho oting because that was the asserted defic iency in the evidence.! / At no time did the c ourt suggest that the foreseeability of a sho oting alone, as oppose d to the foreseeability of the charged offense, was the test. ee 1 As the court explain ed, “Here, the Court o f Appeal held there wa s insufficient evidence to support a finding that Medina’s act offiring a gun was a reasonably foreseeable consequen ce of the gangattack i n which defendants Ma rron and Vallejo participated.” (Id. at p . 920.) -27- The sameis true of People v. Gonzales (2001) 87 Cal.App.4th 1, whichis cit ed by respondentfor the same point. There again, the court began byciting the appli cable test: “A person who knowingly aids and abets criminal conductis guilty of not only the intended crime but also of any other crime the perpetrator actually comm its that is a natural and probable consequence ofthe intended crime. The latter ques tion is not whetherthe aider and abettor actually foresaw the additional crime, but whe ther, judgedobjectively, ifwas reasonably foreseeable.” (Id. at p. 9, emphasis adde d, citing People v. Mendoza (1998) 18 Cal.4th 1114, 1133, citing People v. Prettyman, supra, 14 Cal.4th at pp. 260-262.) That meansthatit 1s the foreseeability ofthe “c rime the perpetrator actually commits”thatis controlling. The court then went on to ad dress the defendant’s specific claim, which was “that the evidence is insufficient to sustain his conviction for aiding and abetting the murder of Llamas on the natural a nd probable consequencestheory, because there was no evidencethat he knew Jimenez was armed or intended to use a firearm in the fistfight.” (dd. at p. 7.) The court rejected the claim,finding “sufficient evidence from which the jury could c onclude that it was reasonably foreseeable when the three defendants left the car tha t a fatal shooting would be the natural and probable consequence of the fight betwee n the groups ofyoung men.” (Jd.at p. 10.) Here again, the fact that the court foc used on that asserted deficiency in the evidence was not meantto alter the applicab le test. At no time did the court suggest that the foreseeability of a shooting alone, as opposedto the foreseeability of the offense, was thetest. Respondentargues that “[t]he Court ofAppeals’ approach in the instant case underminedthe ‘derivative’ liability intended by the natural and probable consequencesdoctrine by allowing the aider and abettor’s liability to be reduced if he -28- could foresee the perpetrator’s actus reus, but not the specific mens rea involved.” (RBoM,at p. 19.) Actually, however, the Court of Appeal foundthat the instructions were in error, because they allowed the jury to elevate the aider and abettor’s liability to first degree murder, using a natural and probable consequence theory, without finding that first degree murder was a natural and probable, consequence. There is no authority to support respondent’s suggestionthatthe non-target offense should be defined only in terms of actus reus, while ignoring mens rea. As previously explained, a crime includes both actus reus and mens rea. (Pen. Code, § 20.) If only the actus reus ofa particular offense is reasonably foreseeable, but the mens rea is not, then the commission ofthat particular offense is not reasonably foreseeable. A lesser offense -- one that does not require the same mens rea as the greater offense -- may be reasonably foreseeable, but the greater offense is not. To support the claim thatthe perpetrator’s mens rea in committing the charged offense need not be foreseeable, respondent relies on language from Favor thatis taken out of context. The language cited states that “even in the case of aiders and abettors under the natural and probable consequences doctrine, punishment need not be finely calibrated to the criminal’s mens rea.” (RBoM,at p. 22, citing People v. Favor, supra, 54 Cal.4th at p. 878, quoting People v. Lee (2003) 31 Cal.4th 613, 627.) The issue being discussed in Favor and Lee concerned the proper construction of Penal Code section 644, subdivision (a). In Lee, the defendant invoked“the rule of avoidance of grave and doubtful constitutional questions” to argue that Penal Code _ section 644 should be construed to require that an aider and abettor of attempted premeditated murder have the mental state requires for premeditated murder. The defendant in Lee had argued that “an attempted murderer whois guilty as an aider and abettor, but who did not personally act with willfulness, deliberation, and -29.- premeditation,is insufficiently blameworthy to be punished with life imprisonment...” (Ibid.) The Lee court rejected as “unsound”the “assumption that punishment must be finely calibrated to a criminal’s mentalstate.” (/bid.) In Favor, the court applied that same concept to explain why the Legislature was justified in making Penal Code section 664, subdivision (a), applicable to “all aiders and abettors,” even though an indirect aider and abettor, whois liable on a natural and probable consequencetheory, may not be as blameworthy as a direct aider and abettor. (Favor, at p. 878.) That concept is obviously inapplicable here, because this case is not governed by Penal Code section 664, subdivision (a), nor is there any other comparable statute. There is no statute that says that an indirect aider and abettor must be convicted of first degree murder, even ifthe commission of first degree murder is not reasonably foreseeable. The reasoning in Favor actually favors appellant. There, the court reasoned that unlike murder, which is divided into degrees with first degree murder a greater offense and second degree murdera lesser included offense, “attempted premeditatedmurder and attempted unpremeditated murderare not separate offenses.” (Favor, at p. 876.) “Attempted murderis not divided into different degrees.” ([bid.) As acknowledged in Favor, the test for liability under the natural and probable consequences doctrine “is measured by whether a reasonable person in the defendant’s position would have or should have knownthat the charged offense was a reasonably foreseeable consequenceofthe act aided and abetted.”””(Jd. at p. 874.) When attempted murder is the charged offense, that is the “charged offense,” evenif it is alleged that the attempted murder was committed with premeditation. This is so because“attempted premeditated murder and attempted unpremeditated murder are not separate offenses.” ‘(Favor, at p. 876.) Premeditation is a “penalty provision” for attempted murder, ~30- which elevates the penalty without creating a separate offense. (Jd. at p. 877.) But a different result obtains whenfirst degree murderis the “charged offense,” because first degree murder and second degree murder are separate offenses. Whenfirst degree murderis the charged offense, an aider and abettor is liable underthe natural and probable consequences doctrine only if first degree murder was a reasonably foreseeable consequence ofthe act aided and abetted. As respondentputs it, under the instructions that were given, the jury had to find that murder, in other words a death, was the natural and probable consequenceofthe target offenses of either assault or disturbing the peace.” (RBoM,at p. 24, emphasis added.) The flaw in this statement is obvious. Death is not the same as murder. Deathis not itself a crime. Under the natural and probable consequence doctrine, the jury must find that the charged crime is reasonably foreseeable, not just “death.” In the absence ofany solid authority to support respondent’s position, respondentis left to argue that “policy concerns” and “equity” supports the expansion of criminal liability that respondent proposes. (See RBoM,at pp. 14-15.) Again, “(ijn California all crimes are statutory and there are no common law crimes. Only the Legislature and not the courts may make conduct criminal.” (/n re Brown, supra, 9 Cal.3d 612, 623, citing Pen. Code, § 6; People v. Mosher (1969) 1 ‘Cal.3d 379, 385, fn. 1.) Thus, no matter how strong public policy might favorit, courts are not free to expand criminalliability provided by statute on policy grounds. (People v. Tufunga (1999) 21 Cal.4th 935, 939.) As previously set forth, Penal Code section 31 extends liability to “[a]il persons concerned in the commission of a crime,” and to be concerned in the commission ofa certain “crime,” the commission ofthat particular “crime” must reasonably foreseeable. (People v. Woods, supra, 8 Cal.App.4th 1570, 529-530.) Thus, to impose liability under the natural and probable -31- consequence doctrine, “the trier of fact must find that.... the offense committed by the confederate was a natural and probable consequenceofthe target crime that the defendant aided and abetted.” (People v. Prettyman, supra, 14 Cal.4th 248, 262.) The court cannot eliminate the requirement that the mens rea of the charged crime be reasonably foreseeable, simply becauseit is deemed goodpolicy to do so. In any event, the expansion of criminal liability that respondent proposes is neither goodpolicy, noris it equitable. “{T]he People have no legitimate interest in obtaining a conviction ofa greater offense than that established by the evidence.” (People v. Breverman (1998) 19 Cal.4th 142, 154-155.) If the evidencefails to establish that first degree murder was a natural and probable consequenceofaiding and abetting a target offense, the People havenolegitimate interest in obtaining a first degree murder conviction against the aider and abettor. Respondent argues that policy concerns require strict vicariousliability, ie., the imposition ofliability even when the specific charged offense, such as first degree murder, is not reasonably foreseeable. (RBoM,at pp. 11-12.) Strict criminalliability is “generally disfavored.” (People v. Simon (1995) 9 Cal.4th 493, 520.) “The Supreme Court has indicated that regulatory or ‘public welfare’ offenses which dispense with any mensrea, scienter, or wrongful intent element are constitutionally permissible, but it has done so on the assumption that the conduct poses a threat to public health or safety, the penalty for those offenses is usually small, and the conviction does not do ‘grave damageto an offender’s reputation.”” (id. at p. 519, citing Morissette v. United States (1952) 342 U.S. 246, 256.) First degree murder, whichis potentially punishable by death, is the gravest of crimes. -32- “[T]he existence of a mensrea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.” (Dennis v. United States (1951) 341 U.S. 494, 500.) “The contention that an injury can amount to a crime only wheninflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individuals to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child’s familiar exculpatory ‘But I didn’t mean to,’ and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place ofretaliation and vengeance as the motivation for public prosecution.” (Morissette v. United States, supra, 342 U.S. 246, 250.) Respondent’s argumentfails to explain why it would be equitable and good penological policy to imposestrict vicarious liability, by extending the natural and probable consequencedoctrine to crimes that are not reasonably foreseeable. “A sentence lacking any legitimate penologicaljustification is by its nature disproportionate to the offense.” (Graham v. Florida (2010) 560 U.S. __, __ [130 S.Ct. 2011, 2028].) “The object of the criminal law is to deter the individual from committing acts that injure society by harming others, their property, or the public welfare, and to express society’s condemnation of such acts by punishing them.” (People v. Roberts (1992) 2 Cal.4th 271, 316.) “'Modern penal law is founded on moral culpability. The law punishes a person for a criminal act only if he is morally responsible for it. To do otherwise would be both inhumane and unenlightened.” (lbid.) Deterrence is not achieved by punishing the aider and abettor for an unintended crime that was not reasonably foreseeable, as a natural and probable consequenceof - 33 - committing a lesser crime. When “murder”is the natural and probable consequence of aiding and abetting a target offense, punishment for second-degree murder serves as a deterrence. No additional deterrence is achieved by imposing a higher level of punishmentforfirst-degree murder when the commission offirst degree murder was not reasonably foreseeable. Noris society’s interest in condemnation and retribution served by imposing punishment for first-degree murder when the commission offirst-degree murderis not reasonably foreseeable. Society should seekretribution for first-degree murder from the perpetrator of first-degree murder. When the commission offirst-degree murderis not reasonably foreseeable, the aider and abettoris less culpable than the perpetrator and deserves less condemnation and retribution from society In sum, the answerto the question at handis clear. In order for an aider and abettor to be convicted of first degree premeditated murder by application of the natural and probable consequences doctrine, the jury must find that premeditated murder was a reasonably foreseeable consequenceofthe target offense. There is no authority to support the People’s argument that only the harm or actus reus need be foreseeable. Nor do concernsofpolicy and equity justify that approach. D. BECAUSE RESPONDENTIS URGING A JUDICIAL CONSTRUCTION OF A CRIMINAL STATUTE THAT IS UNEXPECTED AND INDEFENSIBLE BY REFERENCE TO THE LAW WHICHHADBEEN EXPRESSEDPRIOR TO THE CONDUCTIN ISSUE, IF THAT JUDICIAL CONSTRUCTIONIS ADOPTED,IT MUST NOT BE GIVEN RETROACTIVE EFFECT. If respondent persuades this Court to expand natural and probable consequence liability in the manner respondent suggests, any such change in the law should be prospective. Any retroactive expansion of criminal liability would violate due process. -34.- “If a judicial construction of a criminal statute is ‘unexpected and indefensible by reference to the law which had been expressedprior to the conduct in issue,’ it must not be given retroactive effect.” (Bouie v. City ofColumbia, supra, 378 U.S. 347, 354; see also Rose v. Locke (1975) 423 U.S. 48, 50; People v. Escobar (1992) 3 Cal.4th 740, 752; People v. Wharton (1991) 53 Cal.3d 522, 586.) “[A]n unforeseeable judicial enlargementof a criminal statute, applied retroactively, operates in the same manneras an ex post facto law.” (People v. Davis (1994) 7 Cal.4th 797, 811; also People v. Morante (1999) 20 Cal.4th 403, 431.) “[D]ue process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any priorjudicial decision has fairly disclosed to be within its scope.” (United States v. Lanier (1997) 520 U.S. 259, 266.) “Courts violate constitutional due process guarantees when they impose unexpected criminal penalties by construing existing laws in a manner that the accused could not have foreseen at the time ofthe alleged criminal conduct.” (People v. Rathert (2000) 24 Cal.4th 200, 211.) Respondent’s theory -- that changes the applicable test from the foreseeability of the charged crime to the foreseeability ofharm or actus reus -- urges a novel construction of a criminal statute (Pen. Code, § 31) that imposes unexpected criminal penalties by construing existing laws in a mannerthat appellant could not have foreseen at the time of the alleged criminal conduct. Respondent’s theory is so novel that the Attorney General did not even think to raise it in the Court of Appeal below.?/ It was stated for the first time in the People’s petition for review in this Court. 2 Respondent’s Brief in the Court of Appeal did not dispute the premise of appellant’s claim, which was that the jury should have been instructed to find thatfirst degree murder(not just murder) was a natural and probable consequence. Instead, the Attorney General argued that the jury would understand, from the instructions as a whole, that the jury would understand the correct test: “The instructions informed the -35- Atthe time ofthe offense, liability under the natural and probable consequence doctrine was determined by the foreseeability of the charged offense. (People v. Prettyman, supra, 14 Cal.4th 248, 262.) When the charged offense wasfirst-degree premeditated murder, the law required the jury to find that first degree murder was a natural and probable consequence of the non-target offense. (People v. Woods, supra, 8 Cal.App.4th 1570, 1589.) Nothing in the case law gavenoticeto citizensthat the Prettyman test was questionable or controversial as too lenient, or that it could be changedin the mannerthat respondent suggests. If this Court is persuaded to adopt a new test based on the dissent in Woods, such would be “unexpected and indefensible by reference to the law which had been expressedprior to the conduct in issue.” Any new test that might result must be prospective only, and cannot be applied to appellant’s case. E. RESPONDENT’S CLAIM OF HARMLESS ERROR MUST BE REJECTED. 1. Not raised below. Appellantraised his claim of instructional error in Issue VIII of his openingbrief filed in the Court ofAppeal. (Appellant’s Opening Brief (AOB), at pp. 136-145.) Appellant specifically argued the error could not be found harmless beyond a reasonable doubt. (AOB,at pp. 141-145.) Respondent’s brief argued that the jury was properly instructed. (Respondent’s Brief (RB), at pp. 69-71.) Respondent’s brief madeno attempt to argue harmless error as to this issue, not even as a fall-back position. Nordid respondentraise the issue of harmlesserror in petitioning for review. Because respondent“failed to raise this issue in the Court of Appeal, andalso jury that it had to find appellant knew Che had intended to commit first degree murder, intended to aid and abetthat crime, and did so.” (RB,at p. 22.) - 36- failed to petition for its review in this court, we decline to addressit.” (Grossetv. Wenaas (2008) 42 Cal.4th 1100, 1119, fn. 15.) 2. Notfairly includedin the issue raised in the Petition for Review. Respondent’s claim ofharmless error should also be rejected becausethe issue of harmlesserror is not “fairly included”in the issue upon which the People’s petition for review was granted. (Cal. Rules of Court, rule 8.516(b)(1).) The issue presented in the People’s petition for review was as follows: “In order for an aider and abettor to be convicted of first degree premeditated murder by application of the natural and probable consequences doctrine, must a premeditated murder have been a reasonably foreseeable consequenceofthe target offense, or is it sufficient that a murder would be reasonably foreseeable?” (Respondent’s Petition for Review (RPR),at p. 1.) In the body of the Petition for Review, respondent argued that the Court of Appeal resolved the issue incorrectly in finding instructional error. (Id. at pp. 11-12.) Respondent’s harmlesserror claim is not fairly includedin that issue, but instead, it is at odds with it. A harmless error analysis acknowledgeserror, which is contrary to © the position advanced in the People’s petition for review, where the People argued that there was no error. If respondent believed that the Court of Appeal erred it its harmless error analysis, respondent should haveraised that issue in the petition for review. It is not fairly includedin the issue that the People did raise. 3. The People havefailedin the burden ofproving that the error was harmless beyond a reasonable doubt. An instruction that omits a necessary element of an offense is federal constitutional error. (Neder v. United States (1999) 527 U.S. 1, 15.) It is federal constitutional error to instruct the jury with alternative theories, where one of those theoriesis legally -37- flawed. (Stromberg v. California (1931) 283 U.S. 359, 368; Yates v. United States (1957) 354 U.S. 298, 312.) Such erroris subject to Chapman review. (Hedgpeth v. Pulido (2008) 555 U.S.__ [129 S.Ct. 530, 532-533].) An erroneous instruction that allowed the jury to convict appellantof first degree murder on a natural and probable consequencetheory, without actually finding that first degree murderis a natural and probable consequence,is federal constitutionalerror. It is the People’s burden to prove the federal constitutional error harmless beyond a reasonable doubt under the Chapman test. (Chapmanv. California (1968) 386 U.S. 18, 24; Fontaine v. California (1968) 390 U.S. 593, 596.)?/ The Chapmantest, as explained in Yates v. Evatt (1991) 500 U.S. 391, “is whether it appears ‘beyond a reasonable doubtthat the error complained of did not contribute to the verdict obtained.’” (/d. at p. 402, quoting Chapman v. California, supra, 386 U.S. 18, 24.) “*To say that an error did not contribute to the verdictis ... to find that error unimportantin relation to everything else the jury considered on theissue in question, as revealedin the record.’” (People v. Mayfield (1997) 14 Cal.4th 668, 774, citing Yates v. Evatt, supra, 500 U.S.at p. 403.) The Chapman testis not satisfied by simply emphasizing “overwhelming evidence,” because that approach tends to neutralize the harmless error inquiry. Instead, the correct approach asks whether there is simply a “reasonable possibility” that the error “mighthave contributed to the conviction.” (Chapman v. California, 3 “fT]t is the general rule for error under the United States Constitution that reversal requires prejudice and prejudice in turn is presumed unlessthe state showsthat the defect was harmless beyond a reasonable doubt under Chapman ...” (Peoplev. Gordon (1990) 50 Cal.3d 1223, 1267.) - 38 - supra, 386 U.S. 18, 24, emphasis added, citing Fahy v. Connecticut (1963) 375 U.S. 85, 86-87; see also People v. Gonzalez (2006) 38 Cal.4th 932, 960-961, & fn. 6.) Unlike review for sufficiency of the evidence, which examines evidencein the light most favorable to the prosecution, harmlesserror analysis involves a “broader and more active consideration of the evidence. In appraising the prejudicial effect of trial court error, an appellate court does not halt on the rim of substantial evidence or ignore reasonable inferences favoring the appellant.” (People v. Butts (1965) 236 Cal.App.2d 817, 832.) “We do examine and weigh the evidence with the objective of formulating an opinion as to the degree ofprobable influence which the error exerted on the jury.” (dd. at p. 833, citing People v. Dail (1943) 22 Cal.2d 642, 659.) “Whenthe prosecution presents its case to the jury on alternate theories, some of whichare legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand.” (People v. Green (1980) 27 Cal.3d 1, 69.) A “legally incorrect theory” within the meaning of the Green rule refers “...specifically to instructionalerror, or a “legally incorrect’ theory of the case which, if relied upon by the jury, could not as a matter of law validly support a conviction of the charged offense.” (People v. Harris (1994) 9 Cal.4th 407, 419, emphasis added.) “In such circumstances, reversal generally is required unless ‘it is possible to determine from other portions of the verdict that the jury necessarily found the defendantguilty on a proper theory.’” (People v. Perez (2005) 35 Cal.4th 1219, 1233.) Reversal is required when “[njothing in the record establishes that the jury necessarily rejected [the improper] theory and instead convicted on the [proper] theory...” ([bid.) - 39 - Here, it is not possible to determine from other portions ofthe verdict that the jury necessarily found the defendantguilty of aiding and abetting first degree murder on a proper theory. The special gang finding does not reveal whetherthe jury relied on direct aiding and abetting as opposedto a natural and probable consequence theory to find appellant guilty of first degree murder. The ganginstruction told jurors to determine the gang allegation “[i]f you find the defendant guilty of the crime charged in Count One,first degree murder...” (L0CT 2875.) Because the gang allegation was applicable whichever route the jury usedto find first degree murder, the gang finding does not demonstrate that the jury found first degree murder on a propertheory. The sameis true of the firearm allegation. The instruction on the firearm allegation told jurors to determine the firearm allegation “[i]fyou find the defendantguilty of the crime charged...” (LOCT 2880.) Because the firearm allegation was applicable whichever route the jury usedto find first degree murder, the firearm finding does not demonstrate that the jury found first degree murder on a proper theory. Respondent argues: “Given that the jury concluded that a murder (with express or implied malice) was a reasonably foreseeable result, it would defy logic to conclude that thejury would not have also determined that a premeditated murder was equally foreseeable.” (RBoM,at p. 25.) Respondent explainsthat “appellant was awarethat Che was armed and would usethe firearm ifprovoked.” (RBoM,at p. 25, emphasis added.) But if appellant was aware the Che wasthe sort ofperson who mightshoot someoneifprovoked, that would be consistent with second degree murderrather than first degree murder. Provocation may reduce murder from first to second degree. (People v. Thomas (1945) 25 Cal.2d 880, 903; People v. Valentine, supra, 28 Cal.2d 121, 132.) As the jury was instructed here: “Ifyou concludethat the perpetrator - 40 - committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder.” (CALCRIM No. 522; 10CT 2869.) To say that appellant could have or should have foreseen that Che wasthe sort ofperson who would kill ifprovokedmeansthat Che could be viewed asa hot-head who would react rashly “if provoked,” as opposed to a cold-blooded killer who would commit deliberate and premeditated murder. The prosecution maintained that Che was a memberof the Hop Sing gang. The People’s gang expert testified that Hop Sing values secrecy and avoids publicity. (4RT 954, 961, 1071.) Hop Sing members “usually don’t engage in conflicts out in the open wherethere is a lot of witnesses usually. And they try to keep their criminal activity within their own set, and they don’ttry to display it out in the open.” (4RT 1072.) A reasonable person in appellant’s position could have believed that if Che had time for clear thinking and deliberation, he would have realized that killing a high school boy in public would have been against the gang’s credo, and he would not have doneit Respondentfurtherasserts: “It is undisputed that appellant personally instigated the altercation with Gonzales and Treadway by mocking Nguyen and ordered Cheto get the gun.” (RBoM,at p. 25, emphasis added.) On the contrary, the claim that appellant ordered Che to get a gun was hotly contested. Only one witness made that claim. Joshua Bartholomew,who fought on the side of Nortenos,testified that he hit appellant “pretty hard” in the head while appellant was grappling with Gonzales, and appellant cried out for help: “Grab the gun.” (3RT 743, 746, 761-762.) Appellant denied that he called for anyone to get a gun while fighting. (SRT 1434-1435, 1486, 1493.) Simon Nim testified that he did not hear appellantcall for a gun during the fight. (2RT 506-507.) Gonzales, who was the one fighting with Al - appellant in close quarters, did not hear appellant say anythingat all during thefight. (3RT 714.) Angelina Hernandez, whoparticipated in the fight herself on the side of Gonzales, did not mention anything about appellant calling out for a gun in her testimony. Instead, she testified that Gonzales was the one whoyelled out “gun” while fighting with appellant, and she was “very certain” of it. (3RT 797.) Evenif appellant did call for someone to get a gun, there was no evidencethat Ricky Che was in earshot, or that he acted upon it. The fighting was spread out over a wide area -- Joshua Bartholomew described another fight between Tony Hoong and Roberto Treadway some30 to 40 feet away. (3RT 763.) Lareina Montes testified that she saw Treadwaybeating up Che. (3RT 839.) That suggests that Che was engaged in a fight of his own upto 30 to 40 feet away from appellant, when appellant was supposed to have called for a gun. Lareina Montestestified that Che did not run to the car to get the gun until the fight between appellant and Gonzales appeared to be winding down. (3RT 826-828.) This suggests a significant delay between the time that Bartholomew claimed he heard appellantcall for a gun (a few seconds into his fight with Gonzales) and the time that Che went to get the gun (as the fight was winding down). It is questionable, therefore, whether Rickie Che was in a position to hear appellantcall for a gun,ifhe ever did, and whether he got the gun from the car because of anything that appellant may have said. Respondentclaims that “Appellant then ordered Che to shoot, which he did.” (RBoM,at p. 25.) That too was hotly contested. Appellant testified that he did not yell for Che to shoot. (SRT 1487.) Simon Nimtestified that appellant did notyell “shoot him.” (2RT 507.) No witness specifically claimed that appellant yelled that. - 42 - The only basis for the claim that appellant was the one whoyelled for Che to shoot was the testimony of Anthony Montes, who claimedthat two individuals yelled for Che to shoot and that he saw those same two individuals run with Che back to the car. (3RT 861-862.) Two other prosecution witnesses, however, contradicted the claim that there were two individuals yelling for Che to shoot. Lareina Montestestified that only one person yelled, “shoot him, shoot him, shoot, him.” (3RT 836-837.) Angelina Hernandez likewise testified that only one person yelled “shoot, shoot, shoot,” and it came from someonein the direction of Famous Pizza. 3RT 799-800.) Contradiction by those two other prosecution witnesses (both ofwhom were friends with the victim) on that key point would give jurors pause to question whether Anthony Montes might have been mistaken about hearing two voices yelling to shoot. Angelina’s testimony about how the one voice she heard came from the direction of Famous Pizza suggests that it came from somebody standing behind Rickie Che. Appellant’s fight with Antonio had spun into the middle ofthe street, and according to Anontio Gonzales, Che fired moments after he and appellant unclenched. (3RT 716, 730.) Because appellant was in the street when his fight with Gonzales unclenched,it is unlikely that appellant was the one that Angelina heard yelling from the pizza parlor. In any event, even if Anthony Montes was correct in his claim that two individuals yelled for Che to shoot and then ran to the car, that does not prove that appellant was one of those two. Simon Nim testified that four of them (he, appellant, Hoong and Che) ran to Che’s car after the shooting. (2RT 471, 509.) The two individuals that yelled for Rickie to shoot and then ran to the car could have been Nim and Hoong. - 43 - The prosecutor argued that the two whoyelled for Rickie to shoot must have been appellant and Hoong, and that Simon could not have been one of the two because (according to his prior testimony) he trailed the other three, and had to chaseafter the car as it was leaving. (6RT 1624.) But Anthony Montes did not specify the order in which he saw them run backto the car. Nor did he say that the two ran to the car simultaneously. He simply said that he saw them run to the car. (See RT 862-863, 867.) These facts show that the theory of direct aiding and abetting in a first degree murder was a much more difficult issue than respondent portrays. The natural and probable consequence theory gave the jury an easier route to conviction. Ifthe jury believed that murder wasthe natural and probable consequence of appellant’s participationin target offenses (assault and breach of peace), the instructions allowed the jury to bypass the moredifficult issue of direct aiding and abetting, and find appellant guilty of first degree murder on a natural and probable consequencetheory. The mannerin whichthe jury deliberated strongly suggests that the jury did just that. During deliberations, the court received a communication (Jury Request No.7) from the jury stating as follows: ‘We are stuck on Murder I or MurderII due to personal views. What do we do?” (10CT 2895.) At 2:15 p.m. of the same day, a communication (Jury Request No. 8) was received from the jury as follows: “Weare at a stalemate.” (1lOCT 2898-2899.) Thetrial court initiated an investigation that ultimately led to the removal of a hold-out juror. Other jurors accused the hold-outjurorofrefusing to follow the law. One juror (Juror No. 8) told the court that the hold-out juror said “something along the lines of not being able to put Bobby in Rickie’s shoes as the shooter.” (6RT 2098.) Whenthe court asked the hold-out juror if she ever expressed the view that she “just -44 - couldn’t put the defendant in the perpetrator’s shoes because the law ... because you object to this law, I just can’t do it because I object to the law that the Judge has given to us,” she answeredin the affirmative, because “[i]t is kind of like it doesn’t make sense to me.” (7RT 2114-2115.) She stated that she was bothered by the idea “of aiding and abetting and putting an aider and abettor in the shoes of a perpetrator.” (7RT 2115-2116.) From what was revealed by notes from the jury and the court’s inquiry, it appears that jurors believed that Rickie Che wasguilty of first degree premeditated murder, but were deadlocked on whether appellant should be held guilty of first degree murder as well, or of second degree murder. The majority believed that because appellant “stood in the shoes” of the perpetrator, the law required that he be convicted offirst degree murder the same waythat the perpetrator would be convictedoffirst degree murder. Juror No. 1, on the other hand, did not accept the “in the shoes” theory, and believed that appellant could be found guilty of a lesser offense (i.e., second degree murder), even if the perpetrator was deemed guilty of first degree murder. This dispute indicates that the jury was probably relying on a natural and probable consequence theory of aiding and abetting, rather than direct aiding and abetting. If jurors were convincedthat appellant actually encouraged Rickie Che to shoot Roberto, they would haveno difficulty in finding him guilty of first degree murder based on direct aiding and abetting, and standing-in-shoes theory would not have been a problem. Thefact that jurors were divided over the standing-in-shoes theory strongly suggests that the majority considered appellant responsible for the unintended © consequencesof aiding and abetting target offenses, on a theory that murder was the natural and probable consequence of appellant’s breach ofpeace, and that appellant was guilty of first degree murder because he stood in Rickie’s shoes. -45 - A dispute over the concept of appellant standing in the shoes of the perpetrator goes directly to the heart of the instructional error.4/ Mostjurors apparently believed that if Rickie Che wasguilty of first degree murder, appellant as an aider and abettor must be guilty ofthe same thing, because he stood in the shoes ofthe perpetrator. Juror No. | believed (correctly) that the law does not require that the aider and abettor must automatically receive the same conviction as the perpetrator. Because this appears to be the very issue that divided jurors, the instructional error cannot be found harmless under any standard. 4 Stand-in-shoes theory refers to the sort of strict vicarious liability that respondentis urging. (See People v. Woods, supra, 8 Cal.App.4th 1570, 1580, 1586 [rejecting argumentthat aider and abetter stands in the shoes ofthe perpetrator].) - 46 - CONCLUSION For the reasons set forth above, appellant requests that the decision of the Court of Appealbe affirmed. Respectfully Submitted, Dated: 2/2/2013 Scott Concklin Attorney for Appellant CERTIFICATION This is to certify that this Petition for Review does not exceed 14,000 words, including footnotes. The computer word processing program that producedthis documentreturned a word count of 13,936 words (exluding tables required underrule 8.204(a)(1), the cover information required underrule 8.204(b)(10), this certificate, signature blocks, and quotation of issues required by rule 8.520(b)(2).) Dated: 2/2/2013 Scott Concklin Attorney for Appellant -47- PROOF OF SERVICE BY MAIL [CCP 1013a, 2015.5] I declare that I am a resident ofthe County of Shasta, State of California. I am overthe age of eighteen (18) years and I am not a party to the within entitled cause. My business address is: 2205 Hilltop Drive, No. PMB-116, Redding, California, 96002. On the date of: 2/13/2013 I served the within copies, the exact title ofwhich, are as follows: ANSWER BRIEF ON THE MERITS The name and address ofthe person(s) served, as shown on the sealed envelope with postage prepaid, and which was deposited in the United States mail at Redding, California, is a follows: For The People/Respondent: STATE ATTORNEY GENERAL CCAP PO Box 944255 2407 J Street, Suite 301 Sacramento, California 94244 — Sacramento, California 95816 Sacramento County District Attomey Sacramento County Superior Court 901 G street 720 Ninth Street Sacramento, California Sacramento, California 95814 95814 Appellant Clerk ofthe Court of Appeal Bobby Chiu Third Appellate District AB6522 621 Capitol Mall, 10th Floor KERN VALLEY SP Sacramento, California PO BOX 5102 95814-4719 DELANO, CALIFORNIA 93216 I declare under penalty ofperjury ofthe laws ofthe State of California that the foregoing is true and correct, andthat this declaration was executed in Redding, California Date: 2/13/2013 Scott Concklin
